Portal Terms Of Use
These terms and conditions of use constitute a legal agreement (“Agreement”) between the individual or business using the platform (“Company”) and Platform (defined below). This Agreement governs Company’s use of the portal that Platform makes available to Company on its website(s) or through mobile applications (“Portal”).
By accessing or using the Portal, signing up for an account on the Portal, or indicating acceptance of these terms by such actions as checking a box or clicking a button labeled “Submit” or the like, Company acknowledges acceptance of this Agreement. If you are an individual agreeing to this Agreement on behalf of Company, you represent that you have the legal authority to bind such entity. YOU MAY NOT USE THIS PORTAL OR RELATED SERVICES IF YOU DO NOT AGREE TO THESE TERMS. PLEASE REVIEW THEM CAREFULLY.
ARBITRATION AGREEMENT: BE ADVISED, THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT (SEE SECTION 7 BELOW), WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE COMPANY TO SUBMIT CLAIMS AGAINST PLATFORM TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, COMPANY WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND REMEDIES AGAINST PLATFORM (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING).
- Interpretation; Order of Precedence
- Definitions. Capitalized terms used but not elsewhere defined in this Agreement will have following meanings.
“Extensions” means certain functionalities and/or optional services that are accessible through the Portal but are provided separately from the core Services. Extensions may be provided or operated by Platform or its affiliates (“Platform Extensions”) or third parties (“Third Party Extensions”).
”Platform” means the provider of the Portal, a Service, or a Platform Extension, as the case may be. The Platform will be listed below in this Agreement or otherwise identified on the documentation or website associated with the applicable Portal, Service, or Platform Extension. If the Platform is not elsewhere identified, then the Platform will be Network Merchants, Ltd if Company is located in the UK, and Network Merchants, LLC otherwise.
“Third Party Services” means services, software, or hardware provided or operated by Third Party Providers that are not necessarily accessible directly through the Portal but may connect to, or operate or integrate with, the Services, such as via an application programming interface (“API”) or other means.
“Third Party Providers” means Platform’s partners and service providers, and other third parties, that publish, control, provide, or are otherwise responsible for, Third Party Services and Third Party Extensions.
“Services” means the Portal and the services provided by or through Platform that are accessible through the use of the Portal. The Services also include Platform Extensions (but not Third Party Extensions).
- Scope of Agreement. If Company receives or accesses multiple Portals, Services, and/or Platform Extensions which are provided by different Platforms, then Company will be deemed to have entered into a separate Agreement with each respective Platform, where each Agreement will cover all Portals, Services, and Platform Extensions provided by that particular Platform. Each Platform will be responsible only for the Portals, Services, and Platform Extensions that it directly provides, and no other person or party (including without limitation its parent company, affiliate, supplier, or any other Platform) will have any liability for such Platform’s obligations or its performance or breach thereof.
- Service Terms; Order of Precedence. Specific Services or Extensions may be subject to additional terms and conditions. By accessing or using any Services or Extensions, Company agrees to comply with the specific terms and conditions applicable to such Services or Platform Extensions, in addition to the terms and conditions contained in this Agreement. If there are any conflicting terms between this Agreement and the terms and conditions applicable to a specific Service or Platform Extension, the terms and conditions of such Service or Platform Extension will control to the extent of the conflict.
- Construction. The names of the parts of this Agreement and all headings are for convenience only and will be ignored when construing this Agreement. Words referring to “persons” shall include natural persons, organizations, incorporated entities, unincorporated associations, partnerships, and the like, unless otherwise indicated. Words importing the singular shall include the plural and vice versa. The phrases “including,” “for example,” “in particular,” and words of similar effect will not be deemed to limit the general effect of the words which precede or follow them. References to any agreement (including this Agreement), statute, regulation, rule, document, or deed will be construed as a reference to it as amended or novated from time to time in accordance with its terms. This Agreement will be interpreted in accordance with its terms and without any strict construction in favor of or against either party.
- Services
- Use of Portal and Services. Subject to the terms and conditions of this Agreement, Platform grants Company a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the Portal and Services, solely for Company’s internal business use in accordance with the applicable documentation, specifications, or guidelines published or made available by Platform. If Company receives or uses any Extensions, such Extensions will be subject to the terms and conditions of this Agreement, plus any additional terms and conditions that apply to such Extensions, as determined in Platform’s sole discretion.
- User Accounts. When signing up for an account to gain access to the Portal or any Services, Company agrees to provide true, accurate, and current information in connection with such account. Company is responsible for updating and correcting any information previously submitted if such information changes. Company will be responsible for the acts and omissions of its users, employees, agents, affiliates, any third party using the Portal on its behalf or using its credentials, or any third party invited to access the Portal by Company (collectively, “Representatives”), and Company is responsible for any activity of such Representatives that occurs while using the Portal. Company will maintain the security of passwords and credentials issued for Portal access in accordance with Section 3.5 below. Platform will not be liable for any loss of data or functionality caused directly or indirectly by Company’s Representatives. Company’s use of the Services will be restricted to Company; accounts and account credentials are not transferable and may not be transferred to or shared with any other person. If Platform suspects that Company or any Representative has provided false or misleading information, or if Company or any Representative violates any term of this Agreement, Platform may immediately suspend or terminate Company’s account and the Services and hold Company liable for any damages incurred as a result of such conduct.
- Third Party Extensions and Services. Certain functionalities available through the Portal may be provided or implemented through third parties (“Third Party Extensions”). In addition, the Portal and Services may integrate with or connect to software, hardware, or services operated or provided by third parties but that are not accessible directly through the Portal (“Third Party Services”). Company understands that these Third Party Extensions and Third Party Services are provided by third parties (“Third Party Providers”), not Platform, and are not part of the Services provided by Platform. Platform does not control the functionality of Third Party Extensions and Third Party Services, and makes no representations or warranties related thereto. Company will look solely to the Third Party Providers with regard to liabilities, responsibilities, warranty, maintenance, and support. The current list of available [Third Party Extensions] may be posted on the Portal or on Platform’s website; however, any such list is provided for Company’s reference only and may not be exhaustive or up to date.
- Third Party Terms Third Party Extensions and Third Party Services may be subject to additional terms and conditions established by the applicable Third Party Providers (“Third Party Terms”). In such instances, relevant terms and conditions may be displayed at [Third Party Terms] or may be available directly from the Third Party Provider. In some instances, if the relevant Third Party Provider has authorized Platform to record Company’s acceptance of the Third Party Terms on its behalf, Company’s acceptance of terms and conditions presented with respect to Platform’s Services will also constitute Company’s acceptance of those Third Party Terms, and Company authorizes Platform to communicate such acceptance to such Third Party Provider. However, even in such cases, unless otherwise expressly stated by Platform, Platform will not be a party to and will have no obligations under any Third Party Terms, which will be and remain an agreement solely between Company and the relevant Third Party Provider. Company acknowledges that Third Party Terms may be modified by the relevant Third Party Providers from time to time in accordance with such terms, and Company is solely responsible for checking for applicable updates to Third Party Terms.
- Third Party Content. The Portal may provide access to user-generated content created or uploaded by users (including Company) or other third parties (collectively, “User Content”), including but not limited to documents, files, and web forms created by third parties and hosted by Platform. User Content available on the Portal may also be generated through Third Party Services, such as transaction histories supplied by third party processors. For any User Content that Company uploads or posts to the Portal or other Platform websites, Company grants Platform the right and license to store and display such User Content and to use such User Content as provided in this Agreement or as otherwise consented to by Company. By submitting any User Content, Company represents and warrants that (a) it has adequate rights and consent to share such User Content, and (b) such User Content does not violate Section 4.3 (Prohibited Conduct) or other provisions of this Agreement, any applicable Laws or Rules, or any third party’s rights. Notwithstanding the foregoing, Company acknowledges and agrees that Platform is not responsible for any User Content posted by Company or any other user, including content that may violate this Agreement. The display of User Content on the Portal does not constitute an endorsement or any representation or warranty by Platform of such User Content or of the user that submitted it. Platform does not represent or warrant that any content available through the Portal is true, correct, or accurate, and Company browses the Portal and the User Content at its own risk. Platform has the right, but not the obligation, to take down any User Content that Platform finds objectionable in its sole discretion.
- Portal Invitees. Certain users may be permitted to invite third parties to access the Portal, such as customers, vendors, and others. Platform has no obligation to verify who has access to the Portal or who posts User Content on the Portal. Each user is responsible and liable to Platform and to third parties for the actions, use of the Portal, and User Content of anyone invited through their account (each, an “Invitee”). Nevertheless, all Portal accounts are subject to Platform’s approval in its sole discretion, and Platform has the right, but not the obligation, to prevent account activation by any person, to terminate any person’s previously created account, and/or to restrict or limit the access of any person, including but not limited to any Invitee referred by an existing registered user or Platform customer. By inviting an Invitee, Company consents to Platform sharing Company’s data with the Invitee, which could include Company’s confidential information, account numbers, transaction data, and/or Personal Data (defined below), as the case may be. Furthermore, Company acknowledges and agrees that any Invitee will be included in Company’s Representatives (as defined in Section 2.2 above), and Company is responsible for such Invitee’s use of the Portal, even after the Invitee establishes its own Portal account and/or agrees to these terms and conditions and enters into a direct agreement with Platform. Not all Services or Portal content may be available to all registered users of the Portal. For example, an Invitee may, in Platform’s sole discretion, be limited to accessing the account of the Platform customer who invited the Invitee, and not have access to other Portal features available to other users. Notwithstanding any other provision of this Agreement, Platform will determine, in its sole and absolute discretion, which (if any) Services, User Content, Extensions, or other content or information each Portal user may have access to and the permitted scope of use.
- Electronic Signature Collection. The Portal may include features enabling Company to create electronically signable documents and to collect electronic signatures from third parties, such as Company’s Invitees (“Electronic Signature Collection”). Company will upload document contents and designate fields for a third party to input information or provide an electronic signature. After the third party completes and signs the document, depending on the preferences selected by Company, a copy of the completed and signed document may be emailed to Company and/or the third party, or may be available to download through the Portal. Company acknowledges that Electronic Signature Collection and related services may require Third Party Extensions and/or Third Party Services and may be subject to Third Party Terms. Furthermore, Company acknowledges and agrees that it is solely responsible for the content of each document that it uploads, and for complying with all applicable Laws and Rules, including but not limited to those relating to: (a) consumer disclosures, (b) obtaining full and knowing consent from all signatories, (c) capturing legally enforceable electronic signatures, (d) treatment of Personal Data, (e) recordkeeping requirements, and (f) all other relevant legal issues. Furthermore, Company must ensure that all information captured using Electronic Signature Collection is used, processed, and stored in a manner that is consistent with Company’s published privacy policy. When creating or submitting documents to be presented to third parties, Company is solely responsible to ensure that all required disclosures have been made (as appropriate for each particular document). If Company wishes to ask third parties to enter Personal Data or other sensitive information into a document (e.g., social security numbers or tax ID numbers, bank account or routing numbers, etc.), Company must use the secure field option to obscure the information that is typed into such fields, and/or such other applicable security features as may be made available by Platform. Platform may offer online storage of signed documents for later retrieval through the Portal or otherwise. However, notwithstanding these or any other features or capabilities made available by Platform, Platform makes no representations or warranties that such features or capabilities will always be available, or that they will ensure compliance with Company’s legal obligations. Therefore, Company should not rely on Portal access for record retention but rather Company must download and store all documents offline to the extent required for any recordkeeping obligations. Furthermore, Company acknowledges and agrees that by offering the Electronic Signature Collection services, Platform is not providing legal advice or making any representations or warranties that any agreements or other documents signed using Electronic Signature Collection will be legally effective or enforceable or will ensure compliance with Company’s legal obligations. Company remains solely responsible for its legal compliance relating to capture and collection of electronic signatures and any agreements or documents signed thereby, and Company will indemnify and hold Platform and its suppliers and its and their affiliates harmless from any claims, liabilities, or losses relating to its use of the Electronic Signature Collection services.
- Fees. Platform may charge a fee for the Portal or for any Services or Extensions. Such fees and payment terms will be as set forth in an applicable fee schedule. Unless otherwise indicated on the fee schedule, all payments made will be non-refundable and non-cancellable. Unless otherwise indicated, listed fees are exclusive of any applicable sales or other taxes, and Company will be responsible for any fees, taxes, or governmental fees associated with Company’s or a Company user’s use of the Portal. Company fee disputes must be made in good faith and in writing within 30 days of the billing statement date. If written objections are not received by Platform within such 30-day period, all such fees billed will be deemed accepted, and all claims regarding such invoices will be deemed waived. All fees are to be paid by Company in full, without set-off or deduction. Company’s failure to pay invoiced amounts may result in termination of this Agreement and/or the suspension of Services. For certain Third Party Extensions, the applicable Third Party Providers may charge Company directly (in lieu of or in addition to any fees collected by Platform), in which case Company will pay the applicable fees directly to the Third Party Provider as agreed to between Company and such Third Party Provider.
- Updates. Platform reserves the right, at any time with or without prior notice to Company, to amend or update the Portal or any Services or Platform Extensions, or any specifications, features, functionality, or documentation related thereto. Platform may also amend or update any of its policies, procedures, and guidelines regarding the Portal, Services, and Platform Extensions and Company will promptly comply with such amendments or updates.
- No Development or Trademark Use. This Agreement permits access to the Portal and Services for Company’s internal business purposes as an end user only. This Agreement does not apply to any development materials (including without limitation any APIs which Platform may make available to its integration partners) and does not permit the development or distribution of any Portal or Service integration or any access to or use of the Portal or Services for any such development purposes. Furthermore, this Agreement does not contain a trademark license and does not authorize the use or display of Platform’s name, logos, or trademarks (“Platform Marks”) in any way. Company is not permitted to engage in development or integration activities related to the Portal or Services, or to use or display Platform Marks in connection with an integration or otherwise for any reason, except as authorized by Platform pursuant to a separate agreement which authorizes such use.
- Compliance; Data Usage and Security
- Compliance. Company will comply with, and will use the Portal and Services in accordance with, all applicable federal, state, local, and international laws and regulations, as each may be updated from time to time (“Laws”) and any rules, requirements, policies, procedures, and standards issued by any payment networks, processors, sponsoring banks, or industry regulatory authorities (including without limitation the PCI Security Standards Council LLC and the National Automated Clearing House Association (Nacha)), as each may be updated from time to time (“Rules”). Platform or its designated agents may, at any time upon reasonable request, review Company’s books, records, and operations to verify Company’s proper use of the Services, compliance with this Agreement (including, if applicable, with respect to payment of fees), and compliance with applicable Laws and Rules.
- Company Data. Company authorizes Platform and its suppliers and its and their affiliates to receive Company data from Third Party Providers, and to share Company data with Third Party Providers, as necessary for the provision of the Portal, Services, Third Party Extensions, and Third Party Services (as applicable), which data may include transaction data and other data generated or submitted in connection with any of the foregoing. Furthermore, Platform and its suppliers and its and their affiliates may use, retain, and share any data collected or received in connection with the Portal or Services (which may include, without limitation, confidential information and/or Personal Data) with Third Party Providers and other relevant third parties: (a) as necessary to provide Company with the Portal or Services, in Platform’s sole determination; (b) as required or reasonably requested by Third Party Providers, the card brands, or industry regulators; (c) as required by applicable Laws or Rules; or (d) to maintain the information as long as necessary or as required by Law and used internally for record keeping, internal reporting, and support purposes, or to defend Platform’s and its suppliers’ and its and their affiliates’ rights in a legal dispute. Platform and its suppliers and its and their affiliates may use anonymized and statistical data on an aggregated basis for any reason, and as between Platform and Company such information will be Platform’s confidential information and will not be deemed Company data, provided such data cannot be used to identify Company or any individual. In addition, the privacy policies of the Third Party Providers may set forth other terms governing how they may use information they receive from or about Company in connection with Third Party Services or Third Party Extensions, and Company is solely responsible for reviewing and keeping up to date with any such policies.
- Data Security. Company is solely responsible for the security of all data—including any personal or non-public information about a person, including but not limited to the person’s name, address, telephone number, email address, social security number and/or tax identification number, payment information (including card numbers and payment history), banking information (including account and routing numbers), transaction data (including amounts, types, locations, and descriptions of purchases), and other financial data, or any other type of personally identifiable information covered by any applicable Law or Rule concerning data privacy or security (“Personal Data”)—residing on, read by, or transmitted using servers owned or operated by Company or its vendors. Company will comply with, and will ensure that its and its vendors’ software and hardware systems that are used with or that otherwise interact with the Portal and Services (“Company Systems”) comply with all Rules and Laws governing the collection, retention, and use of Personal Data. Company is fully responsible for its and its Representatives’ activities that occur through the use of any Company Systems. Company will not use, disclose, sell, or disseminate any card, cardholder, or transaction data except as permitted or required by a court order, governmental agency request or subpoena, or Law. Company represents and warrants that it has taken all precautions necessary to ensure that all confidential information, and all transaction data and Personal Data, are protected and that Company Systems are secure from breach, intrusion, and unauthorized access. Platform will not be liable for any security breach on any systems not owned or controlled by Platform.
- Security Violations. If any Company System is breached or an unauthorized third party has or gains access to the Portal, any Company System, Company’s credentials, or any Personal Data or transaction data, or if there is a reasonable risk or suspicion of any such breach or unauthorized access, Company will promptly: (a) notify Platform in writing of such occurrence by creating a ticket or sending an email to support@nmi.com; (b) notify any affected parties as required under any Laws or Rules; (c) take all actions and precautions necessary to prevent any continuous or additional breach; and (d) commence all remedial efforts and other actions required under the Rules, Laws, or court order.
- Company Credentials. Upon account registration, Company may be issued a user name and password, or other credentials to enable Company to access the Portal or Company’s account on the Portal. Company will restrict access to such credentials and the use of the account to Company’s employees and agents as may be reasonably necessary and consistent with the purposes of this Agreement and will ensure that each such employee and agent is aware of and complies with all applicable provisions of this Agreement and any applicable policies or guidelines issued by Platform relating thereto. All such credentials are the property of Platform and Platform may rescind credentials and/or terminate Company’s access to the Portal at any time in its sole discretion. Company will not access or attempt to access the information or user credentials of any other user or any third party. Company is solely responsible for maintaining all necessary security and control of all user names, passwords, and any other credentials issued in connection with the Portal or Services, and Company acknowledges and agrees that Platform will not be liable to Company or any third party for any fraud, negligent acts, or unintended use of the Portal or Services that may occur as a result of Company’s breach of its security and control obligations with respect to its credentials. Platform will be entitled to rely on information transmitted to Platform by or on behalf of Company, including information received through the use of Company’s credentials or from any email address associated with Company’s business or account. Platform may assume that anyone using Company’s account is Company or Company’s authorized users and Representatives. Company will be solely liable for any unauthorized access or misuse of the Portal and will reimburse and hold Platform harmless from any losses or damages caused by such unauthorized access or misuse. Company will immediately notify Platform of any known or suspected breach of security involving Company’s account or Company credentials.
- Privacy Policy; Data Protection Agreement. Personal Data collected pursuant to this Agreement will be processed in accordance with applicable data protection laws and the [Platform’s privacy policy] (“Privacy Policy”), as may be modified and revised from time to time. In addition, to the extent required under the data protection laws of certain jurisdictions, the [Platform’s Data Processing Addendum] accessible at (“Data Processing Addendum”) will apply to any processing of Personal Data which is disclosed or processed on the Company’s behalf in connection with the Services.
- Intellectual Property; Confidentiality
- Ownership. The Portal and Services, and all right, title, and interest therein, including all derivations, copyrights, trademarks, and other proprietary rights, are and will remain the sole and exclusive property of Platform or its suppliers. All such rights are expressly reserved. The rights and licenses granted under this Agreement may be revoked and terminated at any time by Platform and for any reason, including without limitation for any violation of this Agreement or the Laws and Rules. This Agreement does not authorize the use or display of any Platform Marks in any way.
- Confidential Information. In the course of accessing or using the Portal or Services, Company may be exposed to information of a confidential or proprietary nature belonging to Platform or its suppliers or its or their affiliates, including but not limited to information regarding the Portal and Services, or information regarding Platform’s (or the applicable supplier’s or affiliate’s) business, financial, or marketing activities. Company will not disclose any such information to any third party without Platform’s express consent, and will not use such information except as expressly authorized by Platform. If, while accessing the Portal or using the Services, Company is exposed to any Personal Data or confidential information of a third party, Company will immediately notify Platform and delete such Personal Data or confidential information, and in no event may Company copy or use such Personal Data or confidential information or disclose it to any third party.
- Prohibited Conduct. Company will not, and will not enable or permit its Representatives or any other person to: (a) use the Portal or Services in any manner other than as expressly permitted under this Agreement; (b) do anything to contest or impair the Portal or Services or Platform’s rights therein; (c) modify, copy, sell, lease, loan, sub-license, distribute, timeshare, transfer, create derivative works of, disassemble, decompile, or reverse engineer any portion of the Portal or Services; (d) attempt to extract the source code or source listings or any algorithm, data, process, procedure, or any other portion of the Portal or Services; (e) remove, alter, distort, cover, or modify any legal notices, including any notice of proprietary rights, appearing on or included in any materials furnished or otherwise made available by Platform; (f) attempt to gain access to any portion of the Portal or Services for which Company does not have authorized access, interfere with or interrupt the operation of the Portal or Services (including without limitation through denial of service attacks), or harm the Portal or Services or any user thereof through hacking, data mining, SQL or code injections, viruses or other malware, or any other means; (g) use the Portal or Services in a way that could damage, disable, overburden, impair, or compromise the operation of such Portal or Services; (h) collect or harvest any information or data from the Portal or Services or attempt to decipher any transmissions to or from the Portal or Services (including without limitation any user’s information); (i) use the Portal or Services to provide services to third parties or allow third parties to use the Portal or Services, or to build a competing product or service; or (j) otherwise use or access the Portal, Services, or any connected network, system, or database, in any way not authorized by Platform or in violation of any Laws or Rules, including without limitation by developing or distributing any unauthorized integration with the Portal or Services or using Platform’s APIs other than as authorized by Platform (which may require a separate agreement). The parties agree that all improvements, enhancements, modifications, or derivative works made from the Portal or Services by any party will be the exclusive property of Platform, even if suggested, designed, or submitted to Platform by Company. Company will immediately notify Platform if Company becomes aware of any unauthorized use or copying of the Portal or Services or any portion thereof.
- DMCA Notices. The Digital Millennium Copyright Act of 1998 (DMCA) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If Company believes in good faith that any content or other material displayed on the Portal, including user-submitted content, infringes Company’s copyright, Company or its agent may send Platform a notice requesting that the material be removed, or access to it blocked. Notices shall include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the copyright owner; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing; (d) information reasonably sufficient to permit Platform to contact Company, such as address, telephone number, and/or email address; (v) a signed statement that Company has a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that Company is the copyright owner or are authorized to act on behalf of the copyright owner. All DMCA notices shall be submitted to the Platform contact information set forth below.
- Feedback. Company may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Platform with respect to the Portal or Services. Platform will have full discretion to determine whether or not to proceed with the development of the requested enhancements, features or functionality, and will have the full, unencumbered right to copy, distribute, transmit, display, perform, create derivative works of, use, and otherwise fully exploit the Feedback in connection with its products and services. Platform has no obligation to review any Feedback and may use and redistribute Feedback for any purpose without restriction in its sole and absolute discretion.
- Warranties; Liability
- Company Representations and Warranties. Company represents and warrants that: (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (b) its obligations under this Agreement do not violate any law or breach any other agreement to which it is bound; (c) it has all necessary right, power, and ability to execute this Agreement and to perform its obligations therein; and (d) no authorization or approval from any third party is required in connection with the execution, delivery or performance of this Agreement.
- Indemnification. Company will defend, indemnify, and hold Platform and its suppliers and its and their affiliates, officers, directors, agents, and employees, harmless from and against any and all claims, actions, proceedings, investigations and suits and all related internal costs, liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) incurred by the above parties, arising out of or relating to: (a) Company’s or its Representatives’ breach or alleged breach of any representation, warranty, or obligation set forth in this Agreement; (b) negligence, fraud, dishonesty, or willful misconduct by Company or its Representatives; (c) any alleged or actual violation by Company or its Representatives of any Rules or Laws; (d) Company’s or its Representatives’ misuse or unauthorized use of the Portal or Services or any related software, hardware, equipment, or systems, including improper integration, configuration, or interfacing of Company’s or any third party’s system, software, or service with the Services; (e) any fees, fines, or assessments resulting from Company’s or its Representatives’ actions or omissions, including without limitation with respect to any use or misuse of the Portal or Services; (f) any data breach or any unauthorized access, use, or disclosure of Platform’s confidential information, Personal Data, card information, or account credentials from systems and networks controlled by Company, its Representatives, or their service providers; or (g) any alleged infringement of a patent, copyright, trademark or other intellectual property right by Company or arising from any data or other materials or technology supplied by Company or from Company’s use of the Portal or Services in unauthorized manner. If Company or any of its Representatives directly or indirectly causes fees, fines, or assessments to be charged to Platform by Third Party Providers, payment card networks, or any third parties, Company will immediately reimburse Platform for all such fines and penalties. All such obligations and amounts incurred will be deemed direct, not indirect or consequential, damages, and will be collectible notwithstanding any provision in this Agreement to the contrary.
- WARRANTY DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PORTAL AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. PLATFORM AND ITS SUPPLIERS AND ITS AND THEIR AFFILIATES DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR FREE. PLATFORM AND ITS SUPPLIERS AND ITS AND THEIR AFFILIATES DO SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE WITH RESPECT TO THE PORTAL AND SERVICES AND ALL OTHER SERVICES OR GOODS PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, PLATFORM AND ITS SUPPLIERS AND ITS AND THEIR AFFILIATES MAKE NO WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY EXTENSIONS OR THIRD PARTY SERVICES, OR ANY PORTIONS OF THE PORTAL OR SERVICES CREATED, PROVIDED, OR OWNED BY ANY THIRD PARTIES.
- LIMITATIONS OF LIABILITY. UNDER NO CIRCUMSTANCES WILL PLATFORM OR ANY PLATFORM AFFILIATES, OR ANY OF THEIR VENDORS, SUPPLIERS, OR ANY OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS OF ANY OF THE FOREGOING, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, HOWEVER OR WHENEVER ARISING, INCLUDING DAMAGES FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS, INJURY TO BUSINESS REPUTATION, OR COST OF SUBSTITUTE SERVICES ARISING OUT OF OR RELATED TO THE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AND AGGREGATE LIABILITY OF PLATFORM AND ITS SUPPLIERS AND ITS AND THEIR AFFILIATES UNDER THIS AGREEMENT TO COMPANY OR ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, WILL NOT EXCEED $500.00 USD.
- Force Majeure. Platform will not be responsible for any delay or failure in performance of the Portal or Services, in whole or in part, for any cause or circumstance outside Platform’s reasonable control, including, without limitation: fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, pandemics, transportation, utilities, services or supplies, governmental action, computer viruses, corruption of data, DDoS or other computer attacks, incompatible or defective equipment, software, or services, or otherwise.
- Termination. Company’s access to the Portal and Services may be terminated by Platform at any time and for any reason in its sole discretion, including without limitation for any violation of this Agreement, or for non-compliance with any applicable Laws or Rules. Platform’s rights and Company’s restrictions and indemnity obligations under this Agreement, any amounts accrued or owed under this Agreement, and any confidentiality, intellectual property protections, and data protection obligations, will survive termination of this Agreement.
- Arbitration Agreement
- Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Except where prohibited by applicable law, each party agrees that any and all disputes or claims that have arisen or may arise between Company and Platform, whether arising out of or relating to this Agreement or in connection with Company’s use of the Portal or Services or Platform’s websites, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Company may assert individual claims in small claims court, if Company’s claims qualify. Each party agrees that, by agreeing to this Agreement, Company and Platform are each waiving the right to a trial by jury or to participate in a class action. The party’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement. In any event, any action or proceeding by a party against another party relating to any Dispute must commence within one year after the cause of action accrues.
- Class Action Waiver. Except where prohibited by applicable law, Company and Platform agree that each may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both Company and Platform agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claims.
- Pre-Arbitration Dispute Resolution. The parties agree that each is interested in resolving disputes amicably and efficiently and, in that way, Company agrees to initially work with the support team at Platform. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute. The notice to Platform should be sent to Platform at the address set forth below. The notice to Company should be sent to the address of Company that Platform has on file for Company. The notice of dispute must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Company and Platform do not resolve the claim within forty five (45) calendar days after the notice of dispute is received, Company or Platform may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company and Platform shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Company or Platform is entitled.
- Arbitration Procedure. The arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award issues relating to, without limitation, the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Company and Platform agree in writing, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Merchant’s claim is for $10,000 or less, Platform agrees that Company may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in- person hearing as established by the AAA Rules. If Company’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Cost of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules unless otherwise provided in this Arbitration Agreement. The arbitrator shall award the prevailing party in any arbitration such party’s reasonable attorney’s fees.
- Confidentiality; Severability. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than subsection 2 above (Class Action Waiver) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection 2 above is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
- General
- Entire Agreement; Amendments. This Agreement, including any referenced and incorporated exhibits, schedules, and documents, sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Any amendment proposed by Company to this Agreement will not be effective unless accepted in a writing signed by Platform. Platform reserves the right, in its sole discretion, to modify, or replace any part of this Agreement at any time, and such modified terms will be effective upon the stated effective date of such change. Platform will use reasonable efforts to notify Company of any material changes to this Agreement by posting them on the Portal and/or by other reasonable means (such as email). Company’s continued use and access of the Portal or Services following the effective date of the amendment will constitute Company’s acceptance of the amendment and agreement to the updated terms. If Company does not agree to any such amendments, Company’s sole remedy is to immediately terminate this Agreement with written notice to Platform.
- Governing Law; Jury and Class Action Waiver. The Agreement will be governed by, construed and enforced in accordance with the laws of the State of Delaware without reference to conflict of laws principles. Except as set forth in Section 7 (Arbitration Agreement), the parties agree that any litigation arising under this Agreement or relating to the subject matter thereof will be resolved exclusively in the state or federal courts located in Delaware. Such state and federal courts will have exclusive jurisdiction over any dispute concerning this Agreement, and the parties hereby submit to the personal jurisdiction of such courts. IF FOR ANY REASON A CLAIM OR DISPUTE PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHERMORE, ALL PARTIES TO ANY ACTION BROUGHT IN CONNECTION WITH THIS AGREEMENT MUST BE INDIVIDUALLY NAMED. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE LITIGATED ON A CLASS ACTION, JOINT, OR CONSOLIDATED BASIS OR ON A BASIS INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CLIENTS, OR PERSONS. NO COURT PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED PROCEEDINGS.
- Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties at law or in equity. Company agrees to pay all costs and expenses of whatever nature, including attorneys’ fees and litigation costs, incurred by or on behalf of Platform in connection with the collection of any unpaid charges and fees. Company will pay Platform amounts incurred by Platform (including, without limitation, attorneys’ fees and amounts attributable to time spent by Platform staff) in responding to legal process from third parties related to a claim against or investigation of Company within thirty (30) days of receipt of an invoice detailing such expenses.
- Waiver. The failure of any party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right, or remedy in that or any other instance. Waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver will be construed as a waiver of any other and/or succeeding breach of such provision or a waiver of the provision itself.
- Relationship of the Parties; Non-Exclusivity. The parties are independent contractors and nothing in this Agreement will make them joint venturers, partners, employees, agents, or other representatives of the other party. Neither party will make any representation that suggests otherwise. This Agreement is non-exclusive, and nothing in this Agreement will be deemed or construed to prohibit either party from participating in similar business arrangements with any third party as those described herein.
- Assignment. Company may not assign this Agreement or any of Company’s rights or delegate the performance of any of Company’s obligations under this Agreement without the prior written consent of Platform, including by operation of law or in connection with a merger, sale of assets, or change of control. Platform may assign any of its rights or delegate the performance of any of its obligations under this Agreement to any third party designated by Platform, all in its sole discretion, without consent from or prior notice to Company. Any attempted assignment or transfer of any rights or obligations in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will inure to each party’s respective permitted successors and assigns.
- Third-Party Beneficiaries. Network Merchants, LLC and its affiliates are intended third party beneficiaries of this Agreement and will be entitled to enforce the terms of this Agreement as original parties to this Agreement. Except for the foregoing, there are no third-party beneficiaries under this Agreement. The rights granted to Company under this Agreement are granted to Company only, and will not be considered granted to any subsidiary or holding company of Company, unless expressly consented to by Platform in writing.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
- Notices. All notices, requests, demands and other communications to be delivered hereunder, unless specified otherwise herein, shall be in writing and shall be delivered by nationally recognized overnight carrier, registered or certified mail, postage prepaid, to each party’s address as set forth in this Agreement. Each party may update its respective address with written notice. Company must promptly provide Platform with any change of address. Notices will be deemed delivered upon receipt. Notices to be provided to Platform pursuant to this Agreement should be sent via email to: Network Merchants, LLC, Legal Department (for DMCA notices, please add: ATTN: Compliance Manager), legalnotices@nmi.com. Mailing Address is Network Merchants LLC PO Box 120 Portsmouth, NH 03802.
Electronic Communications; Counterparts. In addition to the notice provision set forth above, by using the Portal and Services, Company agrees that it may receive notifications from Platform electronically, including by email (to any email address that Platform has on file for Company), by the positing of such information on Company’s user account on the Portal, or through Platform’s other standard electronic communication channels. Company agrees that all agreements, notices, disclosures, and/or other communications that Platform provides to Company electronically satisfy any legal requirement that such communications be in writing (including but not limited to notices regarding changes to the Services or this Agreement). Company’s consent to receive records and notices electronically will remain in effect until Platform receives Company’s withdrawal of it in writing. Company may withdraw Company’s consent to receive further records and notices electronically at any time by contacting Platform. If Company withdraws its consent to receive such records and notices electronically, Platform may revoke Company’s access to the Portal or Services. Any withdrawal of Company’s consent to receive records and notices electronically will be effective only after Platform has a reasonable period of time to process Company’s request for withdrawal. This Agreement may be executed in any number of counterparts and each such executed counterpart will be deemed to be an original instrument, but all such executed counterparts together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the ESIGN Act of 2000), or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.